Monster energy drink backs down from a frivolous trademark claim.

Details here.

Actually, it was a farce from the beginning. But what do you call it when an inherent farce devolves into a an even bigger farce?

Details here and here.

This is an increasingly familiar pattern. Otherwise truthful people seem to have no problems lying in legal proceedings when they perceive the underlying laws and system is inherently unfair and stacked against them. That is why you see examples such as this and others such as music downloaders claiming that somebody else must have used their computer without their knowledge. In the end, more and more individuals are likely to conclude that it is easier to commit perjury as a potential shortcut remedy when faced with a lengthy and expensive legal entanglement with media conglomerates.

I sympathize with these people. If you want people to have respect for the law and the legal system, you must first make sure that you have laws and a legal system that is worthy of respect. Can you honestly say that this is the case when it comes to the current state of copyright law?

How else am I to describe the company called 'Continental Enterprises', which bills itself in its overview as "an intellectual property consulting firm that takes a novel and aggressive approach to brand protection and infringement issues." ?

They state that their "number one goal is to ensure that those who attempt to steal from our clients are left to wonder when, where and how we will strike next."

Look out folks - The Continental Enterprise outfit doesn't just know how to litigate in order to preserve an overly broad, maximalist IP scheme, but they are also apparently ninja-like experts in "asymmetrical warfare".

Chest-puffing from lawyers is always a sad spectacle, but let's examine their fine work in action, shall we?

Here is an example of them using subtle threats against a beverage review site for posting a picture of a product they were reviewing.

I'm sure the people at Continental Enterprises must be proud of their work. And I'm sure Monster Energy drink must feel that its money well spent.

Monstrous indeed.

[Hat-tip: Overlawyered.com/]

"It would be remarkable, and certainly unjustified, to find that the plaintiff could copyright the concept of Jesus as forgiver."

District Judge John G. Koeltl, explaining in part why one can't copyright the idea of putting Judas on trial.

Judge Koeltl even had the wisdom to award attorneys' fees to the defendant in this case, stating that there were "indicia of bad faith here."

Continuing on: "The plaintiff's first counsel was warned, before any action had been filed, that there was no colorable copyright infringement claim. The plaintiff nevertheless persisted in obtaining new counsel and filing his complaint. Furthermore, this case has the hallmarks of an abusive lawsuit."

Read the whole decision here.

[Hat-tip: CourthouseNews.com]

The 9th Circuit Court of Appeals made a most unfortunate ruling that trademark law and California's 'right of publicity' law "allows a celebrity to sue a greeting card company for using her image and catchphrase in a birthday card without her permission."

Read the original travesty here.

Fortunately, Hallmark greeting cards is not taking it lying down.

They have asked the entire 9th Circuit to re-hear the case en banc.

Read their compelling petition for rehearing here.

Sample quote:

The Opinion holds that a right of publicity claim asserted by an iconic celebrity, stemming from an expressive work that "spoofs" that celebrity and her oft-repeated catchphrase, is not transformative or otherwise protected by the First Amendment. In his well-known dissent from denial of en banc review in White v. Samsung, the Chief Judge of this Court expressed grave concern about courts giving celebrities a "right to keep people from mocking them or their work." White, 975 F.2d at 1516. The Opinion does exactly that, in direct conflict with numerous decisions by this Court and others, and to the detriment of the fundamental right of free speech.

[Hat-tip: CourthouseNews.com]

Courthouse News reports on a disturbing development -

(CN) - In a decision that could have a profound effect on the future of patent law for medical treatments, the Federal Circuit ruled a test for determining the proper dosage of drugs to treat autoimmune disease is patentable under federal law.

A three-judge panel sent the patent dispute between Prometheus Laboratories and the Mayo Clinic's medical laboratory division back to a federal judge in Southern California, saying the judge incorrectly dismissed Prometheus' infringement claim against Mayo.

Mayo has long used Prometheus' patented test for determining the correct dosage of thiopurine drugs used to treat autoimmune diseases. In 2005 it announced that it would begin selling its own dosage test, prompting an infringement lawsuit from Prometheus.

Read more HERE.

Full legal ruling can be found HERE.

James Boyle, author of ‘The Public Domain: Enclosing the Commons of the Mind', weighs in on the matter at this link here.

Check out this controversy concerning the 'unauthorized' use of a photo which depicts the President smoking when he was a student:

http://voices.washingtonpost.com/reliable-source/2009/08/rs-norml5.html

The person who snapped a photo of Obama smoking a cigarette in a manner similar to joint objects that others might use it to make "political" statements.

"They do not have my permission," said Jack, a psychology professor in Minnesota. These photos "are absolutely not to be used in this way. ... I really made a grand effort to do this properly, and I'm very irritated. If I'd wanted these to be used for political purposes, I'd have sold them to Hillary years ago."

Even under the current stifling copyright regime, the claim is problematic. The creators of the poster cropped a significant part of the original photo and put a green tint on it. The only 'creative' element they ultimately copied is the pose supplied by Obama himself - not any creative elements that are inherent to the underlying photograph. There would seem to be a strong case to be made that is an instance of 'transformational' fair use.

Regardless, some of the comments made at the Washington Post sight are sad to read. People are happy to censor political speech under the guise that such speech is somehow "stealing" from other people.

You just knew this was coming eventually:

TechRadium, of Sugar Land, claims it has patents to what it calls the "mass notification" concept. According to the complaint, tweeting infringes on its "systems and methods" of three patents.

More details at Wired.com here.

The full text of the judge's opinion granting a preliminary injunction against the "unauthorized" 'sequel' to Catcher In The Rye (effectively banning its publication in the U.S. even though it can reportedly be found in Europe) can be read in PDF format HERE.

I still don't see how you can square the decision with the NY Times v. U.S. case which sets a remarkably high barrier to overcome a prior restraint of free speech.

[That case can be read HERE.]

Keep in mind, this wasn't a trial on the merits. This was a decision to enjoin the book and ban its publication PENDING a trial on the merits when fair use/parody defenses can be more fully fleshed out.

Some may argue that the NY Times case can be distinguished because it was the government that wanted to ban the speech in question - not a private author. But this distinction doesn't fly in my opinion. Courts have still been very hesitant to enjoin speech in libel, obscenity and even national security contexts. The plaintiffs in libel cases are often private citizens - not government figures. Why the courts choose to ignore their own dictates on the unconstitutionality of prior restraints in the context of IP cases is beyond me.

As Professor Volokh OBSERVES, cases like this force judges to become "literary critics" and make decisions about the law based on their personal aesthetic judgments.

Absolutely insane, and an utter disgrace to the very concept of law....